IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHARLES L. TIMMONS, : CIVIL ACTION

Petitioner :

:

 v. :

:

 :

DAVID DIGUGLIELMO, et al. : NO. 05-CV-3801

Respondents :

REPORT AND RECOMMENDATION

TIMOTHY R. RICE

U.S. MAGISTRATE JUDGE

Petitioner Charles L. Timmons, a prisoner at the State Correctional Institution at

Graterford, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

Timmons claims his imprisonment violates the Constitution because his sentence expired in

April, 1998 and the Pennsylvania Board of Probation and Parole (“the Board”) nevertheless has

continued his imprisonment. For the following reasons, I respectfully recommend his petition be

DENIED with prejudice as untimely under § 2244(d)(1). In the alternative, his claim that the

Board erred in computing his sentence is meritless because Timmons’ challenge does not raise a

federal constitutional question, and under Pennsylvania law the commission of a new crime by a

parolee forfeits all time spent on parole even if such time previously had not been forfeited after

earlier technical violations, Dorsey v. Pennsylvania Bd. of Prob. & Parole, 854 A.2d 994, 997

(Pa. Commw. 2004). 

FACTUAL AND PROCEDURAL HISTORY

Timmons was convicted of burglary in 1976. He filed his federal habeas petition on July

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15, 2005. During those 20 years, Timmons experienced a roller coaster ride resulting in his

freedom eight separate times, only to be followed by new crimes or parole violations, loss of

parole credits, and new prison terms. Timmons is currently in custody serving a 2001 sentence

for drug trafficking of two-to-four years imprisonment effective May 5, 2005. He is also in

custody of the Board on parole from his 1976 sentence of one-to-fifteen years imprisonment,

which expires September 6, 2007.

Timmons’ odyssey through the criminal justice system began May 5, 1978 when he was

paroled after serving the minimum one-year term on his 1976 burglary conviction. After failing

to report to his parole officer, which resulted in his being declared “delinquent,” he was

recommitted effective October 5, 1984 and received no credit for the time he was in violation. 

His maximum expiration date was recalculated as July 11, 1996.

Timmons was paroled a second time on April 5, 1986, but was recommitted for drug use

on October 14, 1987. He was released a third time on February 16, 1988, but recommitted for

technical parole violations on January 23, 1989. His fourth release was approved on June 27,

1989, followed by another violation on May 23, 1990 for failing to report his arrest, changing his

residence without permission, and failing to report. His fifth release was approved February 14,

1992, followed by another violation on October 8, 1993 for technical violations and drug use.

While on parole, Timmons was charged with drug trafficking in 1993 and 1994, resulting

in his imprisonment as a parole violator effective September 19, 1994. His conviction on the

new drug trafficking charges resulted in Timmons losing credit for all time previously spent on

parole under Pennsylvania’s Parole Act, 61 Pa.Cons.Stat.Ann. § 331.21a(a). Under § 331a(a), a

parolee convicted of a new crime while on parole forfeits his “street time,” or time spent at

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liberty on parole, but under § 331a(b), a parolee who commits only a technical violation is

permitted to retain his credit for time served on parole in good standing. A parolee, however,

loses the benefit of credits that had been preserved despite technical violations if he subsequently

commits a new crime. At that point, the credits are no longer insulated from forfeiture and all

time served on parole in good standing is lost. See Dorsey, 854 A.2d at 997-98. 

Based on these lost credits, the expiration date of Timmons’ 1976 sentence was

recomputed to May 30, 2004 – well beyond the April 8, 1998 date on which Timmons claims he

should have been released if he had retained his credit for time served on parole in good

standing. The Board mailed Timmons notice of the recalculated dates on October 30, 1995. 

Thus, as of September 19, 1994, Timmons had served only five years, three months, and 19 days

on his original 1976 sentence, leaving a balance of more than nine years remaining. 

Timmons filed no legal challenge to the Board’s 1995 action or its computation. 

Timmons was paroled a sixth time on November 8, 1996 on his 1976 sentence and again

on September 1, 1998 on his 1994 drug trafficking sentences. Timmons violated his parole

based on technical violations and was recommitted effective March 18, 1999. The Board

released him for a seventh time on August 23, 2000 on his 1976 sentence and after his 1994

sentences had expired.

In 2001, Timmons committed yet another new drug trafficking offense and was

recommitted effective July 19, 2001. Under § 331.21a(a), this resulted in his loss of credit for all

time he had been on parole since the 1993 and 1994 convictions, and his expiration date was

recalculated on January 31, 2003 to September 6, 2007. He was paroled an eighth time on his

1976 sentence to serve two-to-four years imprisonment for his 2001 drug conviction.

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Meanwhile, Timmons filed only two challenges to the Board’s actions. He contested the

Board’s 1999 recommitment decision on November 8, 1999, resulting in the Commonwealth

Court’s July 11, 2000 affirmance of the Board’s denial. On April 24, 2003, he sought

Commonwealth Court review of the Board’s July 31, 2003 re-computation of his release date to

September 6, 2007 based on his second new drug offense. The Commonwealth Court affirmed

the Board on March 4, 2004 and the Pennsylvania Supreme Court denied review on May 24,

2005.

DISCUSSION

I. Timeliness 

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear limitation period for filing applications for writs of habeas corpus. 28 U.S.C.A. §

2244(d)(1). It provides that:

A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of -

(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of

the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from filing

by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral appeal; or

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(D) the date on which the factual predicate of the

claim or claims presented could have been

discovered through the exercise of due diligence.

Section 2244 further provides that “[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. §

2244(d)(2).

Following the enactment of this one-year period of limitations, the United States Court of

Appeals for the Third Circuit interpreted § 2244 to provide for a “one year grace period”

following its effective date of April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.

1998) (“applying § 2244(d)(1) to bar the filing of a habeas petition before April 24, 1997, where

the prisoner’s conviction became final before April 24, 1996, would be impermissibly

retroactive”). As a result, a petitioner whose conviction was final prior to the 1996 enactment of

the limitations period in § 2244 was permitted to seek federal habeas corpus relief until April 23,

1997. Moreover, a petition with claims that trigger one of § 2244(d)(1)(B)-(D)’s alternative

starting dates, but predate the AEDPA’s enactment, qualifies for the grace period ending April

23, 1997. 

Timmons alleges he has been improperly imprisoned since April 8, 1998, which he

maintains is his maximum sentence date, in violation of due process, equal protection, and his

right to be free from cruel and unusual punishment. Because Timmons is a state prisoner and is

in custody pursuant to a state judgment, his only recourse for federal habeas relief challenging his

sentence or its execution is 28 U.S.C. § 2254. See Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir.

2001); Cook v. New York State Div. of Parole, 321 F.3d 274, 278-79 (2d Cir. 2003) (state

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prisoner challenge to revocation of parole under § 2254). The Second, Fourth, Fifth, and Ninth

Circuits have each held the limitations period applies to § 2254 petitions challenging

administrative decisions affecting the execution of the state sentence. See Cook, 321 F.3d at 280

(limitations period applies to challenge to revocation of parole); Wade v. Robinson, 327 F.3d

328, 331-32 (4th Cir. 2003)(every habeas petition filed by persons in custody pursuant to a state

court judgment is subject to the limitations period); Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th

Cir. 2002) (contesting the outcome of prison disciplinary proceedings); Shelby v. Bartlett, 391

F.3d 1061, 1063 (9th Cir. 2004) (challenges to prison administrative disciplinary decisions). 

Only the Seventh Circuit has held to the contrary. See Cox v. McBride, 279 F.3d 492, 493-94

(7th Cir. 2002) (limitation period applies to petitions contesting the judgment of a state court, but

not to petitions contesting administrative decisions). 

Although this is an issue of first impression in this circuit, I am persuaded by the wellreasoned opinion of Judge Trott in Shelby, which examined the rationale of all cases addressing

this issue. The limitations period applies to all petitions filed by a person in custody pursuant to

a state court judgment. Shelby, 391 F.3d at 1065. It is not limited to petitions challenging only

the underlying state court judgment. Id. Thus, Timmons was in custody pursuant to a state court

judgment within the meaning of § 2241(d)(1) even if he was serving a term for parole violations. 

This application of the limitations period controls for several reasons. First, as explained in

Shelby, it is based on rules of statutory construction and the goals of the AEDPA. Id. Second, it

is consistent with the Third Circuit’s determination that a challenge to a parole revocation must

proceed under § 2254, rather than the more general provisions of § 2241, because a prisoner may

challenge either the imposition or the execution of a sentence under § 2254. Coady, 251 F.3d at

Case 2:05-cv-03801-BWK Document 12 Filed 09/13/06 Page 6 of 11
 Attached as the last page of Timmons’ memorandum in support of his petition is a copy 1

of the Board’s notice mailed on October 30, 1995. See Pet’r’s Mem.

7

486. Third, it is supported by the Third Circuit’s determination that a petition challenging the

denial of parole was a “second and successive” petition where the claim was ripe and could have

been raised in an earlier habeas petition challenging the underlying conviction. See Benchoff v.

Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005) (applying a gatekeeping provision of AEDPA to

petition challenging the execution, rather than the imposition, of a sentence). All of these

reasons are consistent with the AEDPA’s purpose of promoting the finality of state court

judgments. See Duncan v. Walker, 533 U.S. 167, 179 (2001).

Here, Timmons’ limitation period began to run on the effective date of the AEDPA,

because he learned of the Board’s revocation of his credit for time served on parole in good

standing on October 30, 1995, prior to the enactment of the AEDPA. The triggering date for his 1

claim was “the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see Redd v.

McGrath, 343 F.3d 1077 (9th Cir. 2003) (factual predicate of petitioner’s claims was the Board

of Prisons’ denial of his administrative appeal).

Timmons never challenged in state court the Board’s October 30, 1995 decision to

recompute his sentence expiration date to May 30, 2004. This is the date when Timmons first

learned the factual predicate for his claim that he would be held in custody beyond his alleged

April, 1998 release. His federal petition was not filed until July 15, 2005 – more than nine years

after the Board recalculated his maximum date to May 30, 2004. Accordingly, his federal

petition falls outside the limitations period in § 2244.

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 Even assuming Timmons’ federal petition is viewed as a § 2241 filing and not subject to 2

the one-year limitations period, see Faulkner v. Dep’t. of Corrections, 221 F. Supp.2d 560, 564

(E.D. Pa. 2002) (Brody, J.) (parole board’s sentence recomputation is a facet of execution of

sentence, not imposition of sentence, and challenges fall under § 2241), Timmons failed to

properly exhaust his state remedies and the claims are now procedurally defaulted. Timmons’

8

Absent statutory or equitable tolling, Timmons was required to file his federal habeas

claim on or before April 23, 1997, when the grace period ended. The earliest date Timmons’

federal petition can be deemed filed is July 15, 2005, the date on which it was signed. Burns v.

Morton, 134 F.3d at 113 (“a pro se prisoner’s petition is deemed filed at the moment he delivers

it to prison officials for mailing to the district court”). Thus, his federal petition is untimely

unless Timmons can establish the limitations period was tolled through July 15, 2005.

The limitations period may be tolled during the time a state collateral proceeding is

pending if the collateral petition was properly filed under state law. 28 U.S.C. § 2244(d)(2). A

properly filed state petition is one “submitted according to the state’s procedural requirements,

such as the rule governing the time and place for filing.” Lovasz v. Vaughn, 134 F.3d 146, 148

(3d Cir. 1998). Timmons’ only challenges to the Board’s multiple parole revocations were filed 

in 1999 and 2003 – well after the Board’s 1995 decision resulting in the loss of parole credits he

alleges would have led to his release in 1998. Even if the time during which these state court

challenges were excluded from the limitations period, Timmons 2005 federal petition was filed

well beyond expiration of the limitations period on April 23, 1997.

Timmons cannot satisfy any of the exceptions to the period of limitations set forth in §

2244(d)(1)(B)-(C). He does not allege any state action that prevented him from filing his

petition, and he does not assert any claim that relies on a new rule of retroactively applicable

constitutional law.2

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failure to challenge the Board’s 1995 decision extending his sentence beyond April, 1998

resulted in his failure to properly exhaust his state remedies, thereby procedurally defaulting his

claims. Before a federal court may grant habeas relief to a state prisoner, the prisoner must

exhaust his available remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). 

However, “if [a] petitioner failed to exhaust state remedies and the court to which petitioner

would be required to present his claims in order to meet the exhaustion requirement would now

find the claims procedurally barred . . . there is procedural default for the purpose of federal

habeas . . . .” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); McCandless v. Vaughn, 172

F.3d 255, 260 (3d Cir. 1999). The purpose of the procedural default doctrine is to prevent habeas

petitioners from avoiding the exhaustion doctrine by defaulting their federal claims in state court. 

Coleman, 501 U.S. at 732. Although the issue of procedural default is best addressed by the state

courts, a federal court may dismiss a petition as procedurally barred if state law would

unambiguously deem it defaulted. Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).

9

Nevertheless, Timmons claims his 2003 Board challenge, which ended with the

Pennsylvania Supreme Court’s denial of review on May 24, 2005, renders his July, 2005 federal

habeas challenge timely. He alleges the factual predicate for his federal claim did not arise until

2003. In reviewing Timmons’ claim, however, the Commonwealth Court noted Timmons did

not raise the claim he now asserts in his federal petition. The Court noted Timmons had alleged

before the Board in 2003 only that “he had not been paroled under the correct sentence number,

and, therefore, could not have been validly recommitted.” Timmons v. Pennsylvania Bd. of

Prob. & Parole, No. 898 C.D. 2003 at 2-3 (Pa. Commw. Dec. 19, 2003). Timmons’ pro se

Commonwealth Court challenge, however, argued that once the Board recommitted him for a

technical parole violation in 2001, which cannot result in the loss of “street time,” or time spent

while he was free on parole, the Board was prohibited from recommitting him later in 2001 based

on his new criminal conviction. Id. at 3.

First, Timmons’ challenge to the Board’s action in 2001 is identical to the Board’s action

in 1995, which resulted in the initial forfeiture of Timmons’ parole credits beyond Timmons’

alleged 1998 release date. Thus, Timmons cannot allege that he first learned the factual predicate

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for his claim in 2001, when the Board had undertaken the identical action six years earlier. 

Second, although the Commonwealth Court deemed Timmons’s belated pro se challenge waived,

id. at 4, it also characterized his claim as frivolous. The court recognized that since 1983 state

law has precluded a parolee from retaining credit for time served on liberty despite a technical

violation if the parolee is later recommitted as a convicted parole violator. Id. at 5. Timmons’

claim, the Court concluded, “would benefit a parolee who committed a technical parole violation

and then received a reparole . . . by shielding him from forfeiture of the street time which

preceded the technical violation, while affording no such benefit to a parolee who is free on

parole for a like total period but who commits no technical violation.” Id. (citing Houser v.

Pennsylvania Bd. of Prob. & Parole, 682 A.2d 1365, 1368 (Pa. Commw. 1996) (quoting Morris

v. Pennsylvania Bd. of Prob. & Parole, 465 A.2d 97, 98 (Pa. Commw. 1983)). 

Moreover, the Court expressly rejected Gregory v. Pennsylvania Bd. of Prob. & Parole,

533 A.2d. 509 (Pa. Commw. 1987), on which Timmons also relies in his federal petition. See

Timmons, No. 898 C.D. 2003 at 5 n.5 (Houser rejected language in Gregory). The

Commonwealth Court’s decision in Houser was recently reaffirmed in Dorsey, where the court

rejected a parolee’s claim that Gregory precluded the Board from forfeiting parole credits earned

despite a technical violation as a sanction for a parolee who commits a subsequent new crime. 

Dorsey, 854 A.2d at 897-98. The legislature’s clear intent, the court noted in upholding §

331.21a(a)’s constitutionality, “is to discourage the commission of new crimes while on either

parole or re-parole by imposing a costly sanction upon offenders.” Id. at 998. 

Thus, if Timmons’ petition were somehow timely, his constitutional claims are meritless

because the loss of parole credits under Pennsylvania law does not implicate a federal

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constitutional question. See Zerbst v. Kidwell, 304 U.S. 359, 363 (1938); U.S. ex rel. Lawson v.

Cavell, 425 F.2d 1350, 1352 (3d Cir. 1970); U.S. ex rel. Heacock v. Myers, 251 F.Supp. 773,

774 (E.D. Pa. 1966), aff’d, 367 F.2d 583 (3d Cir. 1966); cf. Hayes v. Muller, 1996 WL 583180

(E.D. Pa. 1996) (Padova, J.) (rejecting constitutional challenges to Pennsylvania’s Parole Act in

the context of prisoner’s § 1983 action). 

Having determined that this petition is untimely and fails to meet any exception to the

limitations period of §2244(d)(1), and in the alternative, has no merit, I make the following: 

R E C O M M E N D A T I O N

AND NOW, this day of September 2006, it is respectfully recommended that the

petition for a writ of habeas corpus be DENIED with prejudice. It is also RECOMMENDED

that a certificate of appealability not be granted.

BY THE COURT:

\s\ TIMOTHY R. RICE 

TIMOTHY R. RICE

U.S. MAGISTRATE JUDGE

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